Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

May 1, 2013

0120121279 (E.E.O.C. May. 1, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120121279

Hearing No. 461-2011-00110X

Agency No. 1G-708-0002-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s December 8, 2011 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the
Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center in Baton Rouge, Louisiana. On
September 2, 2010, Complainant was seen with his hands in his pockets by his supervisor (S1).
S1 asked Complainant why he had his hands in his pockets and instructed him to do bin
checks. The next day, Complainant wrote a letter to the plant manager (PM) complaining
about the incident with S1. Complainant claimed that S1 approached him aggressively and that
their conversation was intense. Additionally, Complainant made several other accusations
about supervisors targeting and harassing him. That same day, Complainant wrote a letter to
S1 complaining that he was creating a hostile work environment, accusing him of being
indecisive in his management decisions, and telling him he should learn his job.

On September 3, 2010, management temporarily re-assigned Complainant to other duties away
from S1. Complainant retained his bid job and reporting time. Meanwhile, the Louisiana
District Office conducted a workplace climate assessment regarding Complainant’s allegations.
On September 29, 2010, the assessment concluded that there was no evidence to support
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Complainant’s allegations of harassment. In addition, the Agency’s Threat Assessment Team
(TAT) investigated the incident and concluded that the situation was not a threat. Complainant
was returned to his regular duties in late October 2010.

On October 26, 2010, Complainant completed an annual leave request for 40 hours for
December 27 to 31, 2010. Instead of submitting the request directly to S1, Complainant gave
the request to another supervisor who placed it in S1’s “hold out” box. Prior to S1 receiving
the request, S1 was approached by another clerk (CW1) who requested leave during the same
week. S1 approved CW1’s request before discovering Complainant’s request. When S1
retrieved Complainant’s request from his “hold out” box, he denied it because the maximum
number of employees who could take annual leave for the holiday week had been reached.
Ultimately, S1 granted the request after another employee gave up his annual leave scheduled
during that week.

On February 2, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of sex
(male) and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, he was removed from his bid job; his leave request was denied; he was
admonished for having his hands in his pocket; management invaded his personal space; and he
was intentionally not informed of safety meetings.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on November 15, 2011, and issued a bench decision immediately thereafter.

In the decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence of discriminatory or retaliatory animus. Specifically, as to the leave denial, S1
testified that he denied Complainant’s request because he saw CW1’s request first and the
Agency had met its quota for holiday-related leave by the time he found Complainant’s
request. As to his temporary reassignment to other duties, management separated Complainant
from his alleged harasser while the investigation was pending. Temporarily reassigning
Complainant was chosen because it would have the least impact on Complainant’s productivity
and Agency operations. Complainant retained his bid job and reporting time. The temporary
reassignment went longer than intended, however, due to delays associated with having the
District Office conduct the investigation. Finally, regarding Complainant’s allegation that he
was not informed of safety meetings, management held safety meetings typically at the same
time every week. S1 typically reminded employees about the meetings over the intercom, but
since S1 was ordered to minimize his communication with Complainant while the investigation
was pending, he did not personally remind Complainant of the meetings.

The AJ concluded that Complainant presented no evidence that the Agency’s reasons for its
actions were pretextual. As a result, the AJ found that Complainant had not been subjected to
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discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order adopting the AJ’s decision. The instant appeal followed. Complainant
submitted no arguments or contentions on appeal.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

Here, Complainant asserted that based on his statutorily protected classes, management
continuously subjected him to a hostile work environment. Complainant alleged numerous
incidents of what he believed to be discriminatory and retaliatory harassment, including being
admonished for having his hands in his pockets, being temporarily reassigned other duties, not
being informed of safety meetings, and denial of leave. The Commission finds that substantial
record evidence supports the AJ’s determination that Complainant has not shown that he was
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subjected to conduct sufficiently severe or pervasive to rise to the level of a hostile work
environment.

In addition, the Commission finds that Complainant failed to show that any of the alleged
incidents were unlawfully motivated. More specifically, S1 testified that on September 2,
2010, he approached Complainant after seeing him with his hands in his pockets and instructed
him to start checking bins. Hr’g Tr., at 283. When he attempted to leave Complainant’s area,
Complainant blocked him from passing. Id. at 283-84. S1 denied raising his voice or acting
aggressively toward Complainant, but rather asked Complainant to let him pass. Id. at 285.
After Complainant and S1 reported the incident, Complainant’s second-level supervisor (S2)
separated Complainant from S1 and assigned Complainant other duties while the matter was
investigated and directed S1 to minimize contact with Complainant. Id. at 290, 364.

Complainant’s leave request was denied because S1 received and approved CW1’s leave
request before he received Complainant’s leave request and the maximum number of
employees had been granted leave for the holiday period. Hr’g Tr., at 319-21. Complainant
was later asked to resubmit his request after a co-worker gave up his leave and his request was
granted. As to Complainant’s allegations regarding safety meetings, S1 testified that he
consistently held meetings at the same time each week, and he reminded employees over the
intercom. Id. at 327-28. In addition, Complainant was not reporting directly to S1 at the time
while the harassment investigation was pending; therefore, he did not personally remind
Complainant of the meetings. Id. at 328. Finally, as to Complainant’s allegations that the
management ignored his requests for copies of documents, the Plant Manager testified that
Complainant was provided copies of all documentation that he requested as best as the Agency
could provide. Id. at 190

Further, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that substantial record evidence supports the AJ’s determination
that he has not shown that the Agency's reasons for its actions were a pretext for
discrimination or reprisal. As a result, the Commission finds that Complainant has not
established that he was subjected to discrimination, reprisal, or a hostile work environment as
alleged

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

May 1, 2013
Date